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January 21, 2019

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Associated Press v. Drudge Retort

NOTE: The information and commentary contained in this database entry are based on court filings and other informational sources that may contain unproven allegations made by the parties. The truthfulness and accuracy of such information is likely to be in dispute. Information contained in this entry is current as of the last event mentioned in the "Description" section below; additional proceedings might have taken place in this matter since this event.

Submitted by DMLP Staff on Mon, 06/16/2008 - 18:04

Summary

Threat Type:

Correspondence

Date:

06/10/2008

Status:

Concluded

Location:

Florida

Disposition:

Material Removed

Verdict or Settlement Amount:

N/A

Legal Claims:

Copyright Infringement

Hot News Misappropriation

On June 10, 2008, the Associated Press ("AP") sent a takedown request under the Digital Millennium Copyright Act to Rogers Cadenhead, the founder of Drudge Retort, a liberal alternative to (and parody of) the well-known ... read full description

The Drudge Retort is a community site similar to Digg and Reddit, allowing its users to contribute blog entries, comments, and links to interesting news articles. According to Cadenhead, none of the six posts republished the full text of an AP story; instead, each contained quotes ranging in length from 33 to 79 words (although the posts have been removed, Cadenhead has provided a summary of them here).

While the June 10, 2008 takedown request from AP only mentions copyright infringement as a justification for the removal, a June 3 letter sent by AP's Intellectual Property Governance Coordinator, Irene Keselman, also asserted a "hot news" misappropriation claim:

Please note that contrary to your assertion, AP considers that the Drudge Retort users' use of AP content does not fall within the parameters of fair use. The use is not fair use simply because the work copied happened to be a news article and that the use is of the headline and the first few sentences only. This is a misunderstanding of the doctrine of "fair use." AP considers taking the headline and lede of a story without a proper license to be an infringement of its copyrights, and additionally constitutes "hot news" misappropriation.

It doesn't appear that AP is continuing to pursue a "hot news" misappropriation claim against Drudge Retort. This little known legal doctrine, which saw its genesis in 1918 in International News Service v. Associated Press, 248 U.S. 215 (1918), seems to have fallen out of favor because the 1976 Copyright Act preempts all legal and equitable rights that are equivalent to the exclusive rights offered by federal copyright law. As a result, in National Basketball Ass'n v. Motorola, 105 F.3d 841, 844 (1997), one of the few cases to address a "hot news" claim, the Second Circuit set an exceptionally high standard for such claims to be viable, requiring, among other things, that the information be time-sensitive; the defendant be in direct competition with the plaintiff; and the continued publishing of the "hot news" would so reduce the plaintiff's incentive to produce the product or service that its existence or quality would be substantially threatened.

On June 16, 2008, the New York Times reported that AP was reconsidering its request while it creates a set of guidelines for bloggers and websites that excerpt AP material.

Update:

On June 20, 2008, Cadenhead and AP announced that they had settled their copyright dispute. As of June 23, the six posts remain inaccessible.

We are looking for contributing authors with expertise in media law, intellectual property, First Amendment, and other related fields to join us as guest bloggers. If you are interested, please contact us for more details.

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